May 2, 2015

"My responsibility as a human being is to love and accept everybody. Not to criticize people for who they are. I can criticize, and I do, for what people do, for their behavior. But as far as for who they are, you have to respect everybody, and these are obviously complex issues for businesses, for society, and I think we have to look at it in a way that is compassionate and respectful of everybody."

"What happens to me?" = words the government puts in the mouth of the unborn child, who presumably has the opinion that she should not be born. And try to wade through the race-and-class politics of this:

Between 2004 and 2013, of all the racial groups that the city’s Health Department measures, birthrates increased only among whites. Beginning around 2010, as birthrates among whites started steadily to climb up, birthrates among blacks began to go down. In 2013, blacks had a birthrate of 12.7, the lowest of any group in the city, with the abortion rate four times as high among black women as among white women...

For decades there were factions on the right worried about poor minorities “overbreeding” and taxing the city’s resources. Historically, there has been far less panic about the affluent having a lot of children, and yet they change the feel of the city, driving family-size S.U.V.s and generating a more suburban sensibility. The main complaints have come from well-off people themselves, as they worry about overcrowding in affluent school districts and rising numbers of children attending private school, making admission even more impossible....

So the affluent white people end up sick even of themselves — or especially of themselves — and the NYT tries to amuse its affluent-white-female readership with this kicker:

Perhaps those ads could be recast and targeted at TriBeCa mothers with small children, warning them of the tough realities: “You may think you want a fourth child. But what if your husband never buys you that four-bedroom apartment and never says yes to the weekend nanny?”

ADDED: Two things:

1. Why pick on "factions on the right" who worried about "poor minorities" breeding when you've got an ad that plainly reveals that the city government — liberals — were actively fighting exactly that?

2. It's quite politically incorrect to portray a woman as looking to her husband to buy her a home and and a servant. Don't these upscale, affluent types have egalitarian marriages these days? I would have thought that TriBeCa mothers are equal partners in decisionmaking within their marriages. Why did that sexist stereotype suddenly appear? When does the NYT let its guard down?

Assuming [former Senator Russ] Feingold runs -- and we assume he does -- Sen. Ron Johnson (R) is in deep trouble. The only two polls conducted in this race show Feingold with leads of nine and 16 points, which is a very tough place for any incumbent to start. Republicans' best hope may be that Feingold ran an atrocious campaign against Johnson -- when the Democrat was the incumbent -- in 2010, and maybe he will do the same again this time. (Previous ranking: 3)

Do you remember what was "atrocious" about Feingold's campaign in 2010? I don't. I had to go back into my archive to see what I noticed at the time. I found this post about an early October debate between Feingold and Johnson, where both candidates were asked how close they were to be the beliefs of the Tea Party: "Watch Russ Feingold confidently assert that he represents Tea Party values."

The media had predicted Feingold wouldn’t show up at the event, suggesting he didn’t want to be tied to the increasingly unpopular Obama. You wouldn’t know it from his passionate speech. “I’ll tell you something, Mr. President,” he booms, “you are my friend!”

... on the word "rectumtude." I especially like that I've beaten out "Unfortunate Baby Names," which seems serendipitous/fortuitous on a day when the whole world is waiting to hear what the Duke and Duchess are going to name the new princess. Do you think Serendipity is a good baby name? If you ever have twins, a girl and a boy, feel free to use the names I just thought of: Serendippity and Fortuitus. I tweaked the spelling to get an ancient Roman look for the boy and, for the girl, some silly cuteness. You can call her Dippy, as in "Epistle to Dippy":

1. Why was only the man arrested? Answer: The woman didn't have a prior arrest. She received a citation. (Double meaning intended.)

2. If I walked in on private business in a bathroom where the door was accidentally left unlocked, I'd just quickly apologize, close the door, and try to forget about it. Wouldn't you?

3. Those "family bathrooms" — which, I take it, are completely enclosed rooms with a toilet and a sink — what are the limits of what you're allowed to do in private in there? Obviously, they must anticipate that some people are going to use them for sexual purposes. If you don't make noise that can be heard outside the room, leave any mess, or take too long and you do successfully manage to get the door locked, would anything stop you?

Executive Director of the Wisconsin Professional Police Association Jim Palmer released a joint statement Friday with Madison Professional Police Officers Association President Dan Frei saying... "While we appreciate that the anti-law enforcement sentiment expressed in this piece represents the feelings of some, this 'stormtrooper' portrayal of police officers who appear to threaten a small child only serves to advance patently negative law enforcement stereotypes at the expense of the important and selfless jobs that our dedicated officers perform."...

The organizations said they are not demanding the display be taken down, "as we do not view that as an appropriate response to this expression of speech." They stay instead that they are "voicing the collective reaction of Madison's officers who find this publicly-sponsored art display as offensive and indicative of terribly poor judgement."

Milton Friedman once observed that the 1928 platform of the Socialist Party of America may have seemed radical at the time, but nearly all of it was eventually absorbed by mainstream parties and became law. That’s also Mr. Sanders’s hope. He wants to drive the Democratic Party debate to the left so it drags Hillary Clinton along with it.

And it may be working. Mrs. Clinton has already disavowed her husband’s trade agenda. She’s proposed a rewrite of the First Amendment to limit political speech, and don’t be surprised if she also embraces expanded entitlements. The difference is that Bernie believes what he says, while Hillary believes whatever seems necessary to win.

The practical political question is whether Mr. Sanders, or some other liberal gadfly, can do well enough to serve as a stalking horse for a stronger candidate against Mrs. Clinton. Recall how Eugene McCarthy drove LBJ out of the 1968 race with a strong performance in the New Hampshire primary. Robert Kennedy soon jumped in as a more electable antiwar candidate.

[NOTE: The last paragraph of this post is rewritten. Originally, it said: "And we ended up with LBJ, who really was someone who would say whatever was necessary to win." That's not a proper account of 1968!]

In the early 1940s, worried over black attitudes to the war effort, the FBI began compiling files on such traveling targets as [Richard] Wright, Chester Himes and Barack Obama mentor Frank Marshall Davis....

In the depths of the Cold War, a busy season of FBI literary criticism, no fewer than 22 African-American authors were first tracked by Bureau paperwork, among them Ralph Ellison and Lorraine Hansberry. (Hansberry’s now family-friendly drama A Raisin in the Sun (1959) was reviewed by an incognito FBI agent even before reaching Broadway. The four-page paper that resulted would receive a non-inflated “A” in my introductory African-American literature class.) Three Cold War files created in the 1950s—for [James ] Baldwin, Hoyt Fuller and Black Arts founder Amiri Baraka — looked forward to the last great wave of FBI book-clubbing: an elaborate counterintelligence program, well documented in the Senate’s Church Committee report of 1976, to imitate and subvert the literature of Black Power in the late 1960s and early 1970s....

Well, there's one thing that was proved a long time ago about Scott Walker: If you strike him down, he will become more powerful than you could possibly imagine.

I live in Madison, Wisconsin, surrounded by people who — I think — are thinking How the hell did this happen? We crushed him with 100,000 protesters. We destroyed him....Do not attempt to destroy The Walker.

I don't know what that man bought at Sears, but maybe you should be shopping at Sears. Maybe something in the appliance department... maybe the tools... I don't know. Be careful, people.

“You need to make sure that there's some element of African kind of living, the life that we see everyday,” says Robert Semakula, a programmer for Bukedde TV, one of Uganda’s top stations that runs “Be Careful With My Heart”. Each year for the last three years, Mr. Semakula has sorted through a catalogue of shows from foreign media, and lately, Filipino soaps have made the pick....

Filipino soaps find an audience in Uganda because they adhere to a common formula, described by Graham, as a "Cinderella story, a young girl in the country who’s relatively innocent and looks after her relatives, and she’s immediately transported to a place of great corruption, a city or a rich family." Muwonge says these shows connect because they deal with poverty and other issues affecting Ugandans' everyday lives....

Uganda is notorious for its intolerance of gay people and has long had antigay laws. So when Filipino soap operas – which have recently begun to show positive portrayals of gay culture – show two men in a relationship, the station often cuts the scene or storyline.

Headline at a Huffpo article that's teased on the Huffpro front page with "BALTIMORE BADASS":

If the question is the abuse of government power in the form of the police, the answer is not mindless cheerleading for another form of government power, a prosecutor.

Objectively Badass...

Yeah, let's be objective. Let's be level-headed and demand that all government power — police, prosecutors, the lot — operate within the bounds of the law.

My criticism is of the headline and the front-page teaser. The article doesn't contain the word "badass" or present Marilyn Mosby as anything that warrants the use of the word "badass." She herself is saying appropriate things like "I uphold the law" and "At the end of the day I’m here to do my job. It’s about applying justice fairly and equally to those with and without a badge. Did I treat this case any different in the pursuit of justice? No, I didn’t."

I wonder what pushed Huffpo to use that word "badass." I doubt if the word would have been chosen if Mosby were a white male.

"... that can do as much damage as a police baton without an officer having to administer a blow. The exact cause of the spinal injury that Freddie Gray, 25, sustained while in police custody in Baltimore before his death April 19 has not been made clear. The police have said that he was not strapped into a seatbelt, a violation of department policy. That has led some to wonder whether he was deliberately left unbuckled, reminiscent of a practice that while little known has left a brutal, costly legacy of severe injuries and multimillion-dollar settlements throughout the country."

My son Chris says that the descriptions of what may have happened to Freddie Gray remind him of a disturbing scene in the Quentin Tarantino movie "Death Proof" (originally part of "Grindhouse.") Here's the scene:

"Hey, Pam, remember when I said this car was death proof? Well, that wasn't a lie. This car is 100% death proof. Only to get the benefit of it, honey, you REALLY need to be sitting in my seat."

Our sources tell us ... a female flight attendant [on some billionaire's private jet] noticed the dog [Barbra's 12-year-old Coton de Tulear ]and went over to pet her, but Sammie snapped, biting the woman's hand ... puncturing the skin and opening a wound that required stitches.

... don't just go over and pet somebody's dog.

(Virtually all the best-rated comments at TMZ make the same point: "Don't jst reach out and pet somebody dog," "You don't walk up to a dog that doesn't know you or that you are not familiar with and try to pet it," "You never pet a dog without the permission of the owner first," etc.)

Justice Alito expressed amazement at the hedging of the the lawyer who opposed the way the state of Oklahoma delivered the death penalty. Listen:

The case is Glossip v. Gross, and the question is about the drug that is supposed to leave the condemned man completely unconscious while another drug kills him. This strange colloquy took place at the end of the argument:

Clinton "has a loud and clear voice," Stanford linguist Eckert says. "A ‘nice’ woman tends to have a breathy voice," she explained, sounding a little Marilyn Monroe-ish. "There’s nothing breathy about Hillary Clinton’s voice. And if somebody doesn’t want a woman to be powerful they’re not going to like that voice."

Nunberg agrees: "People have become so conscious of the semi-coded ways in which people communicate these sexist notions of aggression." Like Frank Luntz noting he would get "hit" by Media Matters, for example. "Voice will be the place where that comes home to roost. ... It’s just another way of saying ‘shrill.’"

"She said: ‘If you put me in this chair, I don’t care if they are in uniform or not. I come from a family of officers. Some are good, some are bad. I will hold everybody accountable to the law.’ And thank you, Jesus, she lived it out."

From a NYT article about Marilyn Mosby, the Baltimore prosecutor who has charged 6 police officers with homicide for the death of Freddie Gray. The quote is from a woman whose brother was killed by police and who strongly supported Mosby's campaign to oust the incumbent state's attorney for Baltimore City.

And here's a quote from Lester Spence, an associate professor of political science and Africana studies at Johns Hopkins University: "Black power is about taking the office and using it to make government more humane for black people, and that’s what we see in her. She’s supposed to treat me, the corner boy in the Western District and the police officer exactly the same way when it comes to the law. Historically, because of racism, her predecessors have not effectively done that."

"Me, without artifice. If you don’t like it, too bad for you. We are also very rebellious.... We only can do 15 minutes of makeup every morning. The French girl is kind of lazy... [B]eing natural is really something we have in our DNA. Most of them don’t wear anything, have super-long, messy hair... strong lipstick, nothing else — maybe pink. If anything else, it’s a strong, sexy messy eye that looks like they did it with their fingers, which is probably true. They’re sexy, but not glamorous."

"... there is a problem that goes beyond gullibility. This country's political establishment should think about what it has done to inspire such distrust — and what it can do to regain the trust and loyalty of many Americans who no longer grant it either."

One wound occurred when Gray struck his head on a bolt that jutted out in the van, the official said, but that was not Gray’s only head injury. And the injuries overall are consistent with what medical examiners often see in car collisions, the official said.

So, you shackle a man, put him in a van with jutting bolts, and then you drive the van in such a way that he slams into things hard enough to cause multiple injuries, and the man dies of those injuries.

That's worse that shooting a man on the street, where there's some argument of needing to stop him. The shackled man enclosed in a vehicle is already completely restrained. There's no harm to say you needed to stop.

I think of torture devices like the iron maiden, where a helpless person is shut inside something that is designed and intended to injure him.

... I can't wait to see what people say in the comments and then seeing that this is one of those NYT articles without a comments section. The little comments icon — a cartoon-style speech bubble with a number on it — appears at the bottom of the page, increasing the risk that you'll keep reading and assuming that various problems with the article will already be articulated by NYT readers. Then you hit bottom and see, no, if you're going to blog that, you're going to have to do the reactions yourself, or just set it up so that comments on your blog might possibly do what readers at the NYT might have done, except that they won't, because my readers tend not even to like the NYT in the first place and to skew way more right wing.

One reason Ms. Simon and Ms. Geller don’t feel they have to sneak out of the office is that there are no offices. The firm shuns a permanent home in favor of a shared work space managed by a company called Metro Offices, where it rents a conference room for an hour, an office for a day, as needed.... They did this partly to encourage their employees to work from home and on their own schedules....

The other advantage is to hold down expenses, of course, which allows the Geller Law Group to maintain reasonable profit margins while charging less than competitors with higher overhead.... To keep track of one another, the lawyers and a paralegal meticulously update their shared Google calendars and communicate constantly through Gchat.

Ms. Simon delights in the guerrilla-style logistics of a mostly virtual firm....

Delights? Guerrilla-style? This is unswallowable. They found 2 women who have been struggling to do something for a short time, show little sign of success, and are somehow celebrated in the NYT with head-slappingly unbelievable puffery. Now, I know my readers will attack this article, but that's not the same as comments at the NYT, which is serving up material like this because it thinks its readers will lap it up with pleasure. Did they? I bet they didn't! Show me the comments!

By the way, in case you're wondering if fathers appear in this article, the answer is yes. Once:

Ms. Geller wanted to spend part of her daytime hours around her children without giving up on a legal career. “I saw no role models who didn’t have a husband as a stay-at-home dad,” Ms. Geller said of the partners at the large firm she left before starting the Geller Law Group in 2011. Ms. Simon wanted to be home for dinner and attend school events without worrying about how it would affect her annual review.

There is one other cameo appearance by a man in this women-having-it-all puff piece:

The firm’s lone male associate, Michael Munson, told me he left the firm in February because he craved the camaraderie of colleagues.

Oh! It's the man who wants more real, flesh-and-blood relationships and the women who delight in the guerrilla logistics of living on line? Pay no attention to that problem, lady NYT readers! Ms. Simon gets lots of face time with one 4-year-old boy. She's able to leave meetings early and fight through an hour of "punishing rush-hour traffic" to get to that child whom she rewards with a smile when he says "Mommy, I have an idea... Why don’t we eat noodles and watch superheroes?"

Now, lady NYT readers, isn't that just a dream of the way the world should be? Silence!

UPDATE: 5 minutes after I put up this post, I saw that the NYT opened a comments section on the article. I am positive that it was not there before, because there isn't one comment on the article yet. (And I'd searched the page scrupulously for a comments icon before writing this.)

"Nothing more, not even an organist. You watched and waited in semi-silence, ate a hot dog, drank a Moxie, watched some more, yelled when something happened, kept score, saw the shadows lengthen, then trooped home elated or disconsolate. It was a public event, modestly presented, and private in recollection."

I don't believe this is really how professors respond to student requests. A polite refusal is all that's really needed. But these are letters written not to real students but for publication, and you might find them funny. Myself, I don't find them funny. It's too much the "punching down" kind of humor that really should be avoided by someone exercising power. A student may be thinking it doesn't hurt to try. Maybe it could work. And it's an institutional problem if students feel that way. Is somebody else raising grades in response to mere begging?

(At my school, teachers aren't allowed to change grades unless there's a computational error. You can't reassess the quality of the exams. There's also a required curve, so the grades all exist in comparison to the grades that other students received in that class. In a system like that, it doesn't make sense to redo your thinking for one exam. You should have to redo them all. And if anyone needed a higher grade, it should probably mean someone else should have to get a lower grade.)

"... said Bryan Wiener, chairman of 360i, a digital marketing agency that works with brands like Capital One, NBCUniversal, Spotify, Oreo and Oscar Mayer. 'That’s the kind of information that’s missing from Twitter... There’s not this rich history of your holistic life.' As a result, he said, many brands are unwilling to commit big money to Twitter ad campaigns."

This rich history of your holistic life... I don't know if that phrase is ludicrous or horribly disturbing. Neither... I guess... because I'm not laughing or quaking. I have a distanced amusement and vague dread. I'll put it that way.

Speaking with The Marshall Project, Simon traces his wariness back to O’Malley’s time as Mayor between 1999 and 2007, when Simon says he made “mass arrests” of citizens for minor offenses to pad crime statistics. “[W]hat happened under his watch as Baltimore’s mayor was that he wanted to be governor. And at a certain point, with the crime rate high… he put no faith in real policing.”

Simon, a crime reporter at the Baltimore Sun for more than 10 years before he moved to television writing, has been an outspoken critic of O’Malley for years. He has even said that the Wire character Tommy Carcetti, an ambitious politician who manipulates crime reduction statistics, is partly based on O’Malley, a presumed Democratic presidential candidate.

Justices Ruth Bader Ginsburg and Elena Kagan "have each engaged in public conduct suggestive of bias," reads Louisiana House Concurrent Resolution 85, sponsored by state Rep. Valerie Hodges, R-Denham Springs. In engaging on the issue of same-sex marriage, the justices have "thus demonstrate(d) an inability to be objective," and should therefore withdraw from the Obergefell v. Hodges case, the resolution says.

Embarrassing.

And why Ginsburg and Kagan in particular? What was the "public conduct suggestive of bias"? Just because you can predict in advance where their thinking on a legal issue will lead them doesn't mean they are any more biased and bereft of objectivity than anyone else on the Court. In fact, unpredictability is more suggestive of bias. Consistency in legal reasoning, case by case and in expressions about law, suggests that you are following the norms of constitutional interpretation.

ADDED: A commenter says that the "public conduct" is officiating at same-sex wedding ceremonies. I'm seeing this at The Hill:

“Justices Ginsburg and Kagan, knowing full well that unique legal issues regarding the definition of marriage would soon come before them, deliberately officiated at so-called homosexual wedding ceremonies creating not merely the appearance of bias, but an actual and blatant conflict of interest,” [said Scott Lively, president of Abiding Truth Ministries].

“In my personal view they have committed an unparalleled breach of judicial ethics by elevating the importance of their own favored political cause of gay rights above the integrity of the court and of our nation.”

I don't see how participating in a wedding ceremony is a statement that you think there is a constitutional requirement that states must recognize same-sex marriage. Presumably, same-sex marriage was either already recognized in the place where Ginsburg/Kagan was performing the ceremony or it was a ceremony that wasn't recognized as creating a legal marriage. That probably shows they approve of same-sex marriage, though what Ginsburg did was perform a wedding for a former law clerk. Maybe she just treats all her former law clerks the same.

Anyway, doing something doesn't mean you believe you have a right to do it, and it would be utterly unworkable to say judges who do something must recuse themselves in cases about whether there is a right to do something. Should a judge who's had an abortion have to recuse herself in abortion cases? Should a judge who has given a speech have to recuse himself in a free speech case?

ALSO: A separate question is: Let's assume that doing something does equal a statement that one has a right to do it. Is belief that a right exists bias? I can't see that. I think the argument is more that a decision about the law was arrived at too early. But that doesn't make sense. Judges are always thinking, writing, and speaking about the law, forming beliefs about the answers. There's nothing wrong with that. I know there's this idea that Supreme Court Justices shouldn't express their conclusions about cases that might later come before the Court. That's the stock answer to every other question at confirmation hearings, though the Senators doing the questioning don't seem to think there's anything wrong with repeatedly inviting nominees to tip their hand.

According to press accounts, in his talk to the Knights of Columbus, Justice Scalia adverted to the lower court rulings in the Newdow dispute twice -- both in his prepared remarks and in response to a protestor in the audience.

First, Scalia mentioned prior rulings by his own Court indicating that government could not favor any religious sect or religion over non-religion. He observed that such rulings were "contrary to our whole tradition, [and] to 'in God We Trust' on the coins," and said that these rulings had created inconsistencies that lent "some plausible support" to the lower court rulings in Newdow.

Second, when Scalia saw a protest sign in the crowd, he remarked: "The sign back there which says, 'Get religion out of government,' can be imposed on the whole country. . . . I have no problem with that philosophy being adopted democratically. If the gentleman holding the sign would persuade all of you of that, then we could eliminate 'under God' from the Pledge of Allegiance. That could be democratically done." Scalia thus arguably implied that the elimination of the "under God" phrase could not be accomplished by any Court -- even his own.

Was that recusal required or even advisable? I don't think so. And I'm suspicious. I think the recusal served the interests of conservatives. As it happened, the Supreme Court weaseled out, but if the Court's liberals had not figured out a way to avoid the merits — they used standing doctrine — they might have had to say that "under God" violated the Establishment Clause, and that would have been very useful to conservatives in the 2004 presidential election. It was well-remembered that in the 1988 election, George H.W. Bush had battered Michael Dukakis over the Pledge of Allegiance:

With President Reagan at his side in a raucous campaign rally here, Vice President Bush intensified his argument with Michael S. Dukakis today over the Pledge of Allegiance. He said he would have signed a bill that Mr. Dukakis vetoed in 1977 requiring teachers to lead their classes in the pledge.

'What is it about the Pledge of Allegiance that upsets him so much?'' Mr. Bush said of Mr. Dukakis, as an enthusiastic crowd roared its agreement. ''It is very hard for me to imagine that the Founding Fathers - Samuel Adams and John Hancock and John Adams -would have objected to teachers leading students in the Pledge of Allegiance to the flag of the United States.''

Newdow was a rich political opportunity, and I'm sure Scalia knew that. So one could say that his recusal was biased, since he would have voted on the side that would not have leveraged the conservative presidential candidate.

"In some places it did. But of late the progressives have been making a comeback, led by Bill de Blasio in New York and the challenge to sometime reform Mayor Rahm Emanuel in Chicago. This week’s nightmare in Baltimore shows where this leads. It’s time for a new urban renewal, this time built on the ideas of private economic development, personal responsibility, 'broken windows' policing, and education choice."

"The judge dryly mocked Mr. Clinton's tortured definition of his tryst. 'It appears,' she wrote, 'the President is asserting that Ms. Lewinsky could be having sex with him while, at the same time, he was not having sex with her.'"

I'm just reading an old Maureen Dowd column. Clinton v. Jones comes up today in the Conlaw1 readings, and I was looking for something.

Notice the old violent-females-are-funny meme, replete with a frying pan as the weapon. I wonder if younger people today even remember all the ancient humor involving wives hitting their husband with a frying pan.

Roughly half of the nation’s top 250 Republican donors have given money to Mr. Walker in his campaigns for Wisconsin governor.... By comparison, 30 percent have given to Senator Marco Rubio of Florida, 20 percent to Senator Ted Cruz of Texas and 10 percent to Gov. Chris Christie of New Jersey....

Mr. Walker’s previous support from Republican donors... can ease his path to raising money... Beyond money, the support from donors is a sign to other party leaders that he is a serious candidate....

Mr. Walker pulled in many of the top party donors during his 2012 recall contest, which attracted national attention....

Writes Justice Scalia, dissenting from the Supreme Courts decision today in Williams-Yulle v. The Florida Bar (PDF), which upheld the Florida Code of Judicial Conduct prohibition on the personal solicitation of campaign contributions by judicial candidates.

It's notable that the Court applies strict scrutiny. (The Florida Bar had argued that the Court should use a lower level of scrutiny that would only require the limit on speech to be “closely drawn” to match a “sufficiently important interest." That test, the Court said, applies to freedom of political association claims, not to free speech claims like the one presented here.)

But Justice Scalia (who was joined by Justice Thomas) objected to the way the Court applied strict scrutiny:

I just wanted to write a separate post to beat you over the head with the profound accuracy of the Chief's statement.

The government, in banning same-sex marriage, does nothing to ascertain that couples are sexually attracted to each other.

The Sue that loves Joe could be a lesbian, and the Tom who loves Joe could be heterosexual.

Maybe Joe is a very desirable marriage partner for reasons that have nothing to do with a desire to have sex with him. Maybe he's rich and powerful and has a wonderful circle of friends. This Joe, perhaps, loves to cook and is a great cook, and he's got an extensive wine cellar. Maybe he loves just the kind of movies/sports that Sue/Tom loves, and he keeps up an endlessly entertaining stream of conversation, full of witty observations and howlingly funny jokes. And he's perfectly happy to allow Sue/Tom to pursue sexual adventures. Go right ahead! Have them! And come back home to Joe's delicious late-night supper and drink some of Joe's top-notch wine and you can talk about sex for hours.

In the same-sex marriage argument yesterday (PDF), the Solicitor General premised his argument entirely on the right to equal protection of the laws, but Justice Kennedy wanted him to talk about the right to marry. Kennedy framed the question on the old right-to-die case Glucksberg (which was getting its first mention):

JUSTICE KENNEDY: I'm interested in your comments on Glucksberg, which says what we should have to define a fundamental right in its narrowest terms. A lot of the questions that... we're asking your colleague in the earlier part of the argument... had that in mind, I think. What... do we do with the language of Glucksberg that says we have to define it in a narrow way?

GENERAL VERRILLI: Justice Kennedy, forgive me for answering the question this way. We do recognize that there's a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven't made the fundamental rights argument under Glucksberg. And therefore, I'm not sure it would be appropriate for me not having briefed it to comment on that.

JUSTICE KENNEDY: Well, can you tell me why you didn't make the fundamental [rights] argument?

Verrilli refrains from saying because we thought it was the weaker argument (perhaps because of Glucksberg). He said because "this issue really sounds in equal protection." ("Sounds in" is legal talk.)

Later, Justice Breyer, questioning the state's lawyer, gave some indication that he thought the right to marry was a better ground for the decision than equal protection:

Some have already blamed the youth who rioted as the sole culprits, the only cause of the problem. That reminds me of those who can’t understand why their weeds continue to grow when their lawn mower only cuts off the leaves. They didn’t see that the root of the problem requires digging deeper than what was on the surface....

That does not excuse bad behavior.... But as for the baseball aspect of this, playing a game without fans is not the answer.... Yes, a fan-free game minimizes the risk of a lawsuit for having a game in which they could get hurt. But even if it was more expensive to the owners and MLB, sacrificing fans for the profits and logistics is not a good idea. Ticket refunds may ameliorate the problem a bit. But I suspect the fans that paid that hefty ticket price would much rather see the game than have the same money back they already decided to spend.

I'll just add 2 things:

1. Playing before the empty stands makes a powerful visual statement that is entirely different from a postponement. If there's a postponement, there's nothing to see, and seemingly nothing is lost. Some later game between those 2 teams is turned into a double header. But when a game is played to empty stands, the disturbing spectacle will be on TV and radio. Many people will watch/listen and experience the theater of sadness. Fans will live through hours of What Has Happened to Our Proud City. On TV, there will be none of the shots of kids and weird guys and pretty girls to amuse us during the inevitable longueurs of baseball. You might think it won't matter so much on the radio, but it will. The crowd sound in the gaps in the chatter are integral to the beauty of baseball on the radio.

2. Groves's statement "That does not excuse bad behavior" will, I am sure, sound lame to many of you, but I happen to have my copy of Michael LaBossiere's "76 Fallacies" open to the precisely relevant page: "Confusing Explanations and Excuses":

April 28, 2015

Said Justice Scalia after a protester interrupted the same-sex marriage oral arguments with some "burn in hell" anti-gay yelling. I was listening to the oral argument as I was walking to class, and despite being out in public, I was brought to tears. We had just heard some careful argument with decently thoughtful questions from the Justices, and it was just so brutal and crude to shout about hell for homosexuals. And then Justice Scalia said "It was rather refreshing, actually." And I did laugh a little. Because... what did he mean? I think he meant, you know, we've all got to be so sober and appropriately legalistic all the time, and here was a person just shouting out how he really felt. It's refreshing. I don't think Justice Scalia meant: You know, that's how I feel too. I think these gay people are just horribly deluded, they're trying to delude others, and a lot of people are getting sucked into the pit of hell. No... I don't think that. Do you?

I'm going to listen, and I'll be back with some comments a while later.

UPDATE: SCOTUSblog removed the needed links from the top of its page. You can get the audio here and here and the transcripts — PDF and PDF — (at the Supreme Court's own page). The case name is Obergefell v. Hodges.

Asks Eugene Volokh, noting that John Chisholm made a bit of a veiled threat toward Governor Scott Walker: "As to defamatory remarks, I strongly suspect the Iowa criminal code,
like Wisconsin’s, has provisions for intentionally making false
statements intended to harm the reputation of others." That came in response to Walker's saying that the John Doe investigation "was really about people trying to intimidate people," "They were looking for just about anything," and "it was largely a political witch hunt."

Volokh says that Iowa, in fact, does not have a criminal libel law, but Wisconsin does. Is Chisholm serious?

Is DA Chisholm is trying to signal that he may begin using Wisconsin’s own criminal libel law against political figures — or commentators or journalists — who he claims are lying about him (or other political figures)?

Volokh finds "the use of criminal libel law in political disputes... troubling." I'll say. I mean, that was Walker's point — government using its power to intimidate political opponents — and Chisholm's instinct was to threaten to use government power to intimidate political opponents. Of course, that's a despicable chilling of free speech. In fact, it's chilly enough around here that, on proofread, I wondered whether I ought to be writing "threat" and "threaten."

"The [petitioners] had said they were looking to 'join the institution of marriage.' The chief objected that perhaps they were not looking to redefine it, not join it. And he emphasized that he had looked up all the definitions he could find, and it was always a man and a woman..."

"Justice Kennedy said he had 'a word on his mind .. and that word is millennia'... He pointed out that the definition of marriage had prevailed for millennia and it seemed a fast change; on the other hand, he noted that the time between Lawrence and this case was about equal to the time between Brown and Loving -- this raised the question for him of whether this might all be too fast to redefine such a long standing institution."

So Roberts and Kennedy are thinking in terms of redefining the word.

Justice Scalia started a discussion about whether "a minister who objects to same sex marriages could refuse to perform a civil same-sex wedding" and seemed satisfied with the argument that First Amendment rights would protect the minister.

The SCOTUSblog writer notes the contrast between the Justices who stressed "the 'millennia long' definition of marriage" and those who forefronted "the relatively new character of egalitarian marriage." Also, there was "a kind of quirky historical dispute about whether ancient societies with their heterosexual definition of marriage could not be trusted (because they generally discriminated against gays and lesbians), or whether they could be, because they were generally more open to homosexuality outside the marriage context (Alito asked this question about Ancient Greece)."

"American education, by and large, has become an education in cynicism: Our Founders were rank hypocrites. Our institutions are tools of elite coercion. Our economy perpetuates privilege. Our justice system is racist. Our foreign policy is rapacious. Cynicism gives us the comfort of knowing we won’t be fooled again because we never believed in anything in the first place.... This is the America that the Clintons seek to enlist in their latest presidential quest. I suspect many Democrats would jump at an opportunity not to participate in the exercise... But they will go along with it, mostly because liberals have demonized the Republican Party to the point that they have lost the capacity for self-disgust.... As for the rest of the country, Mrs. Clinton’s candidacy offers a test: How much can it swallow? John Podesta and the rest of Mrs. Clinton’s campaign team must be betting that, like a python devouring a goat, Americans will have ample time to digest Mrs. Clinton’s personal ethics..."

Stephens asks many good questions, but since I pounced on Lanny Davis's animal analogy yesterday — the rooster crowing and the sun rising supposedly explained away Hillary's "Clinton Cash" problems — I've got to take a closer look at that python devouring a goat. Davis's analogy was bad because it didn't do what he needed it to do: illustrate coincidence. Does Stephens's analogy function properly? He isn't saying Americans will be able to do the equivalent of slowly digesting the a goat, only imagining that Clinton's people must be hoping that will happen. But the slow digesting can only occur if the goat is swallowed. The python performs 2 tricks: swallowing the goat and digesting the goat. The swallowing must come first. Without the swallowing, the devastating evidence is preserved.

I will not take one more step down the metaphorical path established in the previous paragraph. And to refresh your brain, I offer this story about a captive python named Houdini who swallowed a queen-size electric blanket (including the cord and control box). The blanket was there to keep the cold-blooded creature warm, and he was provided with rabbits to eat, but somehow he decided he'd have the blanket. (Oh, I always take the rabbit. Tonight, I'll try the blanket!) Was the python able to slowly digest the electric blanket? We'll never know, because the blanket was surgically removed. I'd like to think of a political predicament for which that could be an apt analogy.

In fairness to Hillary, she was not the governor of the state that is having terrible trouble right now. She was not the mayor of Baltimore. O'Malley, if he is to be a plausible alternative to Hillary, needs to be able to flaunt his achievements as governor and mayor.

He's tweeting things like: "We must come together as one City to transform this moment of loss & pain into a safer & more just future for all of Baltimore's people." I wouldn't give him much credit for self-interested, anodyne statements like that. Baltimore is really hurting him. The man was mayor of Baltimore or Governor of Maryland from 1999 to just this past January. If Baltimore has big problems, he's responsible for them! His expressions of sorrow and hope for the future are fundamentally ridiculous.

Meanwhile, it might be nice if Hillary would show up and contribute something to the national political debate.

In emphasizing their long-range strategy, Mr. Walker’s advisers are seeking to lower expectations ahead of the first fund-raising totals for most candidates and their “super PACs,” which will be made public in mid-July. They also want to minimize expectations at this stage for Mr. Walker as a head-to-head competitor against Mr. Bush, who talks about policy with greater ease and confidence.

Advisers to Mr. Walker do not see any choice: Mr. Bush is raising money prodigiously, telling donors at a private gathering in Miami last weekend that his political organization was set to break political fund-raising records. Mr. Walker believes his best shot is to peak as a well-prepared, solidly financed candidate as Iowa, New Hampshire and other states start voting in February and March.

"He says, 'O.K., what are we gonna do with this one? Make him a smart kid, very determined[']… and then, when he’s just finishing, he says, 'Let’s wait a second.' God looks down and chuckles a little bit and says, 'Hey, let’s give him the soul of a female.'"

We're being invited — through a new door — back into an old subject: Whether there is such a thing as a "the soul of a female." Or... actually, those are 2 old subjects: 1. Whether essentialist ideas about the feminine are true/false and useful/damaging, and 2. Whether we have some core being that might be called a "soul."

I don't even know what Bruce Jenner really thinks. I read his quote as a sort of myth he made up about himself, and he's only letting us know that it's something he uses in his presentation to others. I can't tell whether it's something he's found helpful in understanding himself, and I certainly don't believe that he literally believes that God creates us like that.

The picture is of James Madison, who died in 1836. The 14th Amendment, the source of the rights asserted in the same-sex marriage cases, was adopted in 1868.

Toobin has nothing new to say on the subject of constitutional interpretation. He says things like:

[W]hen it comes to Supreme Court decisions, it is usually safe to bet that a majority of the justices will come down on the side favored by most of the public. In any case, as we head into the argument, it looks like most of the justices have already made up their minds.

The only real problem he sees with that is that "the justices have imperfect instincts when it comes to measuring public attitudes." Oh, come on. It's not about accurate measuring of public attitudes. It's about glomming onto the best attitudes of the educated, enlightened people (without running into too much resistance from ordinary people).

Toobin's column is utterly boring, but I only have something even more boring to say about the cases that are to be argued this morning: Precedent — the cases already decided — will determine the outcome.

"When nonviolence begins halfway through the war with the aggressor calling time out, it exposes itself as a ruse. When nonviolence is preached by the representatives of the state, while the state doles out heaps of violence to its citizens, it reveals itself to be a con."

The question relates to the Journal-Sentinel reporters’ knowledge of a pre-dawn paramilitary-style raid of the home of Cindy Archer, a fo[r]mer aide to Wisconsin Governor Scott Walker and one of the architects of Wisconsin’s Act 10, which reformed that State’s public sector unions....

Someone had to tip the Journal-Sentinel off. But under Wisconsin law, disclosure of a search warrant’s issuance, prior to its execution, is a Class I felony and could also violate the judge’s secrecy order of the John Doe investigation itself....

But regardless of Stein’s possible privilege, it seems evident that there is a serious and continuing leak in the Wisconsin John Doe investigation, and that it warrants an investigation of its own.

Indeed, if it hadn’t been for the courage of Eric O’Keefe of the Wisconsin Club for Growth–who has defied the ridiculous gag order imposed on John Doe targets–the only knowledge the public would have today about the investigation would come from these one-sided, pro-investigation leaks.

I've got to stay with that Lanny Davis interview for another post. The previous post is about his talking point that the Clinton Foundation is so huge that things that might seem big are actually small. The proportion point. There's also the coincidence point:

WALLACE: Do you think it was a coincidence all these Canadian mining executives are giving millions to the foundation, that a company with close ties to Vladimir Putin's government in Russia is giving half a million dollar speech? Do you think that's a coincidence that's happening while the Russian company that wants to buy Uranium One has business before the State Department? Do you think that's a coincidence?

DAVIS: I don't use the word "coincidence". Of course, it's a coincidence but it's a false inference. It sounds like if two incidents occur side by side, like the rooster crows and then the sun rises, it's a coincidence that the sun rises after the rooster crows. The rooster doesn't cause the sun to rise.

It's not a coincidence that the rooster crows and then the sun rises. It's true that the rooster doesn't cause the sun to rise, but the sun rising causes the rooster to crow. The events are causally related. The mistake is over what caused what. It's not a coincidence!

I think Davis was striving to sound casual and folksy, what with that barnyard scenario, except that he sounds like an overbearing lawyer, not like somebody tapping into real, everyday life (with everyday people). Davis has no background on farms. His father was a dentist. Farms are just a useful source of American hokum. I'd watch out for nonfarmers using farm bullshit. (Other than the "bullshit" itself, which is a fully dead metaphor.)

WALLACE: We know because of the reporting in Peter Schweizer's book of one major violation of this, a failure to disclose, and that is that Ian Telfer, who was chairman of Uranium One, that uranium company that the Russians wanted to buy, gave $2.35 million to the Clinton Foundation through his family's Fernwood Foundation, and yet that contribution, $2.35 million -- I mean, I know the Clintons have a lot of money, but that's not pocket change. That contribution was never reported.

DAVIS: Look, we've known each other for a long time. You used the word "major". You're entitled to that adjective.

WALLACE: You don't think $2.35 million is major?

DAVIS: Let me finish, you're going to give me 30 seconds. $2.3 million out of $2 billion is not major, even by any definition. And moreover, there is, let's say not on this program to resolve, a fundamental dispute whether Mr. Telfer's $2.3 million was given to Clinton Foundation or another foundation based in Canada that was a fund for social --

WALLACE: In every other case, passed the money straight through to the foundation and what was reported.

DAVIS: As I said, we do not think that was a contribution to the foundation. But if it was, $2.3 million divided by $2 billion, the amount of money the foundation collected over all the years -- to me, $2.3 million divided by $2 billion is not what Chris Wallace call[s] major.

WALLACE: That's what I call major. May not be what Lanny Davis calls major.

DAVIS: I agree. We have a right to disagree on the word "major."

It depends on what the meaning of "major" is! Davis is perseverating about the meaning of "major," which is absurd for 2 reasons: 1. Legalistic quibbling about the meaning of a word is quintessentially Clintonesque, reminding us of a notorious instance of lying while preserving an argument that it's not really lying, not if you think about it the right way, and 2. He's calling attention to the fabulous wealth within which the Clintons swim.

He went on the show to help the Clintons! How is that helping? I guess it's the best he had, and now I see the Foundation's CEO using the same talking point. They must have brainstormed to get to that horrible talking point. I'd love to see what got rejected.

I have to stay focused on my job. Because for many Americans this is still a time of deep uncertainty. For example, I have one friend just a few weeks ago, she was making millions of dollars a year and she’s now living out of a van in Iowa.

He takes a shot at Hillary that minimizes her current "Clinton Cash" catastrophe and relaxes us into laughing by opening up a channel to that dark place in our souls where we harbor disgust for the poor.

In its inaugural report, Google distinguishes between “sustained growth” trends, like tulle skirts and jogger pants; flash-in-the-pan obsessions like emoji shirts and kale sweatshirts; and “seasonal growth” trends, or styles that have come back stronger every spring, like white jumpsuits. It makes similar distinctions among sustained declines (peplum dresses), seasonal ones (skinny jeans) and fads that are probably over and done (scarf vests).

Lisa Green, who heads Google’s fashion and luxury team, said the company had begun working with major retailers, including Calvin Klein, to help them incorporate real-time Google search data into fashion planning and forecasting. “Fast fashion” companies, for example, can take a trend identified by Google and run with it, Ms. Green said....

ADDED: It's so funny to think of weird things becoming fashion trends after Google mistakes searching as an indication that people want to wear something when, in fact, they're curious about it for some other reason. I mean, I'm curious about scarf vests now, just because I don't know what they are, so I'd have to look it up. And if Google's presentation causes people to adopt something that wasn't a real fashion trend, then manufacturers will want to figure out strategies to cause certain words to get searched. Or maybe they'll just notice words that are picking up in the world of Google searching and start making whatever it is — tulle skirts or some such thing. (Aren't people Googling "tulle skirts" just because little girls want them? Maybe not.)

That's what Obama said last week, but I don't see how it can possibly be true, and I don't really understand why he would state a policy in terms that are so plainly unbelievable. If that were the standard, how he could use drones at all — let alone carry out hundreds of attacks? And if that's not the standard, why say it's the standard, since (if it's believed) it's encouraging the enemy to defend itself by keeping hostages and other innocents in their midst? If it's not believed — and I think it's on its face unbelievable — it wrecks his credibility.

These questions occurred to me as I listened to the panel discussion on "Fox News Sunday" yesterday, which began with a clip of Obama saying the words that appear in the post title:

[AP reporter JULIE] PACE: [W]hen he said that we were not going to take strikes unless there was a near certainty that civilians would not be killed[:] How can you -- how can you be sure of that?...

[National Journal reporter RON] FOURNIER: ... I think anybody who... has a problem like I do with this drone strategy, still has a problem. And maybe more so, the fact that the president promised that... he was going to be transparent, about how, about why and how we conduct war from a robot in the air blowing people away.... [W]hen the president of the United States says we're going to deal with near certainty, really? How do you come up with near certainty? Is that just a talking point that you say two years ago and then we find out that you can't do it? Let's put some meat on the bones, Mr. President.

[Fox News political analyst BRIT] HUME: It seems to me that they probably had near certainty. What they didn't have was actual certainty. And that's always going to be the case....

So one answer to my questions is: It depends on what the meaning of "near" is.

The drone policy was also questioned because of the way it kills people who could be captured and used for intelligence, which is related to the question of near certainty, because intelligence is needed to get to near certainty. If you keep killing everyone, how do they know whom they're killing? I suspect that after the fact they deem everyone who was there an enemy, at least as far as they can (and they couldn't in the case of the 2 specific hostages). And they don't want the trouble of detainees.

April 26, 2015

I did not have access to internal memos, but... you see this pattern of benefit.... The analogy I would use [is] like insider trading. I wrote a book a couple years ago on members of Congress who were potentially engaged in insider trading. When you talk to prosecutors, they will tell you, most people that engaged in insider trader don't send an e-mail that says, I've got inside information by this stock. The way that give prosecutors, by looking at the pattern behavior, did somebody who has access to the information conduct a series of well-timed stock trades that warrants further investigation? And that's my contention here, that you see a series of actions that enormously beneficial. In some cases, Hillary Clinton is reversing course on policies that she embraced before for the benefit of Clinton donors and I'm saying, this warrants investigation.... [I]f you look at the case of Governor... McDonnell... in Virginia. You look at Senator Menendez in New Jersey, there's no quid pro quo in those cases. They were simply prosecuted, and I think justifiably so, on the grounds that there was this pattern of gift giving...

"... (millions in donations that made it to a Clinton charity; a half-million-dollar speaker’s fee) and multiple quos (American diplomatic intervention with the Russians; approvals when the Russian firm offered a very “generous” price for Uranium One). The Clinton perspective is that, although the approvals were delivered by the State Department when Clinton led it, there is no evidence that she personally delivered them, or of the 'pro' in the equation. The Clinton campaign, in its response to the Times, noted that other agencies also had a voice in the approval process, and gave the Times a statement from someone on the approvals committee saying that Clinton hadn’t 'intervened.' The Clinton spokesman wouldn’t comment on whether Clinton was briefed about the matter. She was cc’d on a cable that mentioned the request for diplomatic help, but if there is a note in which she follows up with a directive—an e-mail, say—the Times doesn’t seem to have it. This speaks to some larger questions about political corruption. How do you prove it? Maybe the uranium people simply cared deeply about the undeniably good work the foundation is doing, and would have received the help and approvals anyway. In cases like this, though, how does the public maintain its trust?"

One look at those patterns and you're ready to believe the letter-writer, no? How could a desire to swathe yourself in that mean anything more than lighthearted fun-loving? Givhan instructs:

Lilly Pulitzer is preppy. It is part of a preppy uniform that announces itself from fifty paces. It is not so much a declaration of wealth as it is a perceived statement about class, lineage and attitude. Anyone can work hard and save up enough cash to go out and purchase a Chanel suit or a Gucci handbag. A devoted student of Vogue can cobble together a personal style that speaks to its public identity. But Lilly Pulitzer suggests an advantage of birth. The clothes stir up scrapbook notions of ancient family trees, summer compounds, boarding school uniforms, and large, granite buildings inscribed with some great-great-grandfather’s name. Lilly Pulitzer represents something that money cannot buy.

The clothes are, upon close inspection, not so terribly attractive. Actually, they are rather unattractive. And that is part of their charm. They are not meant to be stylish — that’s so nouveau. The clothes are clubby. Country clubby. One-percent-ish....

Too hateful? How can you look at those patterns and feel hate? I know there's this old tradition of country club people wearing really bright colors and stupid patterns, but what was that ever about? Wasn't it lighthearted fun-loving? Why shouldn't people with less money see the fun too? There's a lot of expensive fashion that is adapted from what younger, poorer people are wearing in the streets. What difference does it make which direction fashion trends move? I think Givhan would answer that I'm asking the wrong question, because this isn't fashion — "Lilly Pulitzer is not fashion. It is clothes." — and non-clubby folks who purport to like these things are delusional. The stuff is ugly and so it must be that they only want to look like the rich.

ADDED: Givhan's argument belongs in the "What's the matter with Kansas?" school of liberal opinion-writing. The common people don't know their own real motives and interests and letting them think and do what they like is a problem.

MORE: I blogged about Lilly Pulitizer once before, at the time of her 2013 obituary, which I presented like this:

Lilly Pulitzer dresses were "really wearable only by the few who were so rich that they could afford to have bad taste."

Says the NYT in the obituary for Lilly Pullitzer, who built a "fashion empire" out of "tropical print shift dresses and lighthearted embrace of jarring color combinations like flamingo pink and apple green." Lilly was born into wealth and married into more wealth. She had 3 children and a nervous breakdown.

“I went crazy. I was a namby-pamby; people always made decisions for me. The doctor said I should find something to do.”

The family estate included citrus groves, so she opened a juice stand with another woman, and juice stains inspired the print dresses....

So the Times obituary declared not only that the clothes were in bad taste, but also that only the rich are allowed to act upon such bad taste. Now, 2 years after Pulitzer's death, Target offered a Lilly Pulitzer line that was cheap, and you can see how dissonant that is with the values of elite commentators like Givhan. It wasn't the price that put these clothes out of the reach of the non-rich. They can make the clothes cheap, but still, you have be rich for these clothes to be wearable.

Given the speed he was going, [Reima] Kuisla was assessed eight days. His fine was then calculated from his 2013 income, 6,559,742 euros, or more than $7 million at current exchange rates.

Someone committing a similar offense and earning about 50,000 euros a year, or $54,000, none of it capital gains, and with no young children, would get a fine of about 345 euros, or about $370. Someone earning 300,000 euros ($322,000), would have to pay about 1,480 euros ($1,590).